Immigration Laws Deny Access to Justice

January 08, 2002

In 1996, the 104th Congress passed and the President signed into law the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) and the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Touted as legislation that would control illegal immigration, IIRAIRA and AEDPA actually include many provisions that significantly affect legal immigrants and others seeking to enter the United States legally. The new laws quickly became the focus of media attention and court action. The reason: their “one-size-fits-all” approach treats otherwise law abiding legal permanent residents the same as dangerous criminals. Legal immigrants who have lived here for nearly their entire lives are being deported for minor crimes committed years—and sometimes decades—ago. Since 1996, limited ameliorative legislation and court decisions have mitigated some of the most egregiously harsh provisions of the 1996 laws. Still, additional legislation will be needed to restore fairness to our immigration law. 

Events of September 2001 have made these reforms more urgent. It is clear now that the U.S. must focus on individuals who pose a serious threat to Americans. We should not have our immigration enforcement resources pinned down in the prosecution and deportation of legal immigrants who committed minor crimes many years ago. Instead, the 1996 law should be changed to restore some balance in our law, to make the punishment fit the crime, and to stop the irrational diversion of immigration enforcement resources that current law requires.

Some of the harshest provisions of the two laws are described below.

Immigrants Denied Their Day in Court

IIRAIRA stripped the courts of any authority to review the decisions of the Immigration and Naturalization Service (INS). The INS had interpreted the law to mean that virtually all decisions about deporting or detaining affected individuals could no longer be reviewed by a court. This extraordinary limitation on an individual’s right to seek relief from bad or mistaken decisions violates basic notions of due process and fairness. 

Changing the Rules of the Game

The 1996 laws greatly expanded the definition of “aggravated felony.” Immigrants convicted of a crime defined by immigration law as an “aggravated felony” are deportable and are not eligible for relief from deportation. When the concept of aggravated felony was first introduced in 1988, only the crimes of murder, drug trafficking, and firearms trafficking constituted aggravated felonies. Under IIRAIRA, even misdemeanor crimes as minor as shoplifting may be considered "aggravated felonies." Furthermore, the INS had interpreted the new expanded definition as applying retroactively. Thus, legal immigrants were being deported for minor offenses they committed 25 years ago. This was true even if the offense was not defined at the time as an aggravated felony (and, therefore, had no immigration consequences) and the immigrant at that time was already punished in the criminal justice system. The law further added insult to injury by barring anyone who had been convicted of an aggravated felony from even applying for relief. This expansion essentially denies any opportunity for long-term permanent residents who have family, ties to the community, and other strong equities a chance to remain in the U.S.

When a law becomes so harsh as to be unworkable, creative ways will be found to work around it, to avoid absurd results. In localities around the country, judges wishing to punish an individual for a crime that is not serious enough to warrant permanent banishment have been sentencing some individuals to terms of 364 days, thus avoiding the immigration consequences that come with a one-year sentence. In Georgia, the State Board of Pardons and Paroles has been flooded with requests for pardons of misdemeanor crimes. It has pardoned individuals whose misdemeanor crimes are retroactively being considered "aggravated felonies." In other areas, judges are reducing sentences already imposed, because immigrants may have pled guilty to a minor crime after being told there would be no consequences to their immigration status. The need to work around the absurdly harsh punishment required by the 1996 immigration law has placed a burden on local criminal justice systems. In March 2000, the Georgia State Board of Pardons and Paroles wrote to Georgia Senator Max Cleland, urging him to make efforts "to provide a remedy which more appropriately uses the nation's resources and brings some measure of justice to this process…."

"Secret Evidence" Used to Lock Up Immigrants

AEDPA established an “Alien Terrorist Removal Court,” setting up a procedure whereby a non-citizen suspected of being a terrorist can be removed from the U.S. In the procedure, classified information is protected, but the government must provide an unclassified summary of evidence, which a judge determines is sufficient for the alien to prepare a defense. There are times when the government cannot reveal its sources when dealing with particularly dangerous individuals. Unfortunately, the INS has used secret evidence outside of this procedure, locking up individuals for months or years—sometimes without even telling them why—giving them no meaningful opportunity to defend themselves. Authority to use secret evidence should be tightly restricted. Otherwise, as the courts have found again and again, the government will abuse that authority. 

The Supreme Court Steps In

In June 2001, the Supreme Court handed down three important rulings that together sent a strong message to Congress and the administration that the 1996 laws went too far. The first ruling struck down the INS interpretation that the courts were prohibited from reviewing virtually any decision to detain or deport an individual. The Court recognized that habeas corpus review challenging the legality of a decision to detain an individual has historically been important in the immigration context, and the Court ruled that immigrants were not barred from bringing habeas corpus petitions to federal courts raising legal issues pertaining to their detention.

In the second ruling, the Court said that it was not permissible to deprive an immigrant from relief from deportation if that relief was available to an immigrant when he entered into a plea bargain accepting punishment for a crime. In this ruling, the Court struck down the retroactive application of the law in situations where immigrants entered a plea bargain at a time when “212(c)” relief from deportation was available to immigrants who had committed certain crimes. 

Finally, the Court struck down the indefinite detention of certain immigrants subject to removal, but whose countries refuse to accept them back.

Congress Must Act in a Comprehensive Manner

Despite the recent Supreme Court decisions curtailing some of the harshest aspects of the implementation of the 1996 laws, and despite the success of some individuals in having their sentences reduced by sympathetic local criminal justice systems, Congress will have to act in a comprehensive manner. It is not enough to ask, as some members of Congress have done, for the INS to “exercise its discretion” when enforcing the 1996 law has lead to bad publicity. Not everyone who suffers the injustice of the 1996 laws will be lucky enough to gain the attention of a sympathetic press. Nor can we rely on the courts to fix the legislation—courts can only rule on the particular set of facts before them.

The law must be changed to restore judicial review, to end its retroactive application, and to ensure that the punishment fits the crime. Specifically, judges should again be allowed to decide cases on an individual basis, so that immigrants who can show they have paid their debt to society and who have strong ties to the U.S. are given a chance to stay with their families. The definition of "aggravated felony" should be changed so that crimes defined as such are truly felonies—not the misdemeanors and other lesser crimes that today are uniquely defined in immigration law as aggravated felonies. Immigrants should not be deported today for minor crimes they committed in the past just because those crimes have been redefined on paper to be serious.

In the 107th Congress, legislation to restore some balance to our immigration laws are under consideration. If passed, these bills would give back to America’s newcomers some of the access to our system of justice that the rest of us take for granted. 

• The Immigrant Fairness Restoration Act (S. 955) is a comprehensive bill that would: eliminate the retroactive application of the 1996 laws; restore a sense of proportionality and rationality to the list of offenses for which immigrants can be removed by, for example, changing the definition of "aggravated felony" to apply only to serious crimes; put immigration judges back in the role of judging individuals on a case by case basis; make changes in the law that would make it possible for deserving immigrants and their families to remain together in the U.S.; restore judicial review; ensure that immigrants are not detained unnecessarily; allow immigrants already deported as a result of the unfair provisions of the 1996 laws to reopen their cases; and make other changes to mitigate the harsh consequences of the 1996 laws.
• The Family Reunification Act (H.R. 1452) would, among other things: restore waivers from deportation for immigrants found by an immigration judge to have strong ties to this country; change the definition of what would make an immigrant qualify for relief from deportation; eliminate the retroactive application of the 1996 law; allow persons already deported as the result of the 1996 law to reopen their cases; and allow an immigration judge to release from detention immigrants eligible for relief from deportation while their case is pending.

The recent decisions by the Supreme Court have restored some due process rights to legal immigrants. However, Congress must act in a comprehensive way to restore due process rights to immigrants not yet helped by the courts. Until Congress does act, the 1996 laws will continue to be a dark stain on our treatment of America’s newcomers.